Intellectual property law is good. Excess in intellectual property law is not. This blog is about excess in Canadian and international copyright law, trademarks law and patent law. I practice IP law with Macera & Jarzyna, LLP in Ottawa, Canada. I've also been in government and academe. My views are purely personal and don't necessarily reflect those of my firm or any of its clients. Nothing on this blog should be taken as legal advice.

Friday, January 11, 2013

Voltage Pictures Mass Litigation: What is Teksavvy's Task?

In
the current Voltage Pictures litigation pending in the Federal Court, it’s remarkable
but understandable that the focus has shifted from Voltage to Teksavvy. It’s a fair question as to why Teksavvy won’t
oppose the Voltage motion for disclosure en
masse of the names and addresses of 1 or 2 thousand of their customers.
Shaw and Telus successfully stood up for their customers in 2004.

And why am I concerned
about all of this now? It’s because we have a good balance in Canada in terms
of the interplay of the Copyright Act, PIPEDA, and the Federal Court Rules. Many
people, including me, put in a lot of effort in 2004 and 2005 to achieve this
balance. It has apparently succeeded in discouraging to date the kind of unsavoury
"troll" activity that we have seen in the USA and UK. But this balance
only works if everyone plays their part.

“It’s
hearsay evidence. There’s very little in that affidavit that they’ve filed in
support that gives us confidence that they’ve met the legal burden,” Mr. Fewer
said.

If
David is right, it would likely be simple, straightforward inexpensive and even
easy for Teksavvy to successfully oppose this disclosure motion. This would be
a win/win for Teksavvy and its customers. This would not mean that Teksavvy is
getting involved in the “merits” of the case. Protecting privacy in no way
amounts to endorsing piracy.

Generally
speaking, the real issue now is under what circumstances, if any, an ISP is
expected or maybe even required to take reasonable steps to safeguard its
customers' privacy. If an ISP can successfully and inexpensively oppose an
inadequately documented attempt to breach its customers’ privacy, then why
should it be able to walk away and leave its customers on their own and just tell them they can hire their own lawyers? It’s the ISP’s duty under the PIPEDA
federal privacy legislation to protect its customers’ privacy. That presumably
does not mean simply telling them that their privacy is about to breached, that
they are on their own and are free to get a second mortgage and hire their own
lawyer.

ISPs
are paid a lot for their services, and one part of their job is to live up to their PIPEDA
obligations. ISPs customers pay $25, $50, $60, $80 or more a month and part of their
expectation, beyond fast and reliable service, is an expectation of privacy and
an expectation that their privacy will be safeguarded – especially if an ISP
promotes this aspect to get and retain customers.

In
the current case, at the very least and to be as polite as possible, it’s completely
unrealistic to suggest that those who may be sued by Voltage should retain their
own counsel at this stage. Any such person has no legal status at this point in
the litigation and the legal and procedural issues they would have to deal with
(such as preserving their anonymity at the peremptory state) are unmapped and much
more complicated than anything Teksavvy would need to deal with. Indeed,
Teksavvy’s task would apparently be quite simple if CIPPIC is substantially right
as quoted today and in its earlier submissions to the Court in its
letter dated December 14, 2012 hereand its December
21, 2012motion
to intervene.

All
that Teksavvy would need to do – and the
road map is very clear and the road well paved - is simply to demonstrate to
the court, if it is the case, that
Voltage’s material is inadequate from an evidentiary standpoint and that
Voltage does not sufficiently demonstrate the requirement of a bona fide intention to actually litigate.

Generally
speaking, it is an interesting question as to whether any putative mass
litigator can seriously intend to start 2,000 actions, which would mean 2,000
statements of claim, with a registry filing fee of $150 each, if the claims are
of the nature set forth by Teksavvy in the initial statement of claim so far.
It would be astonishing if the Court were to allow one plaintiff to sue
hundreds or thousands of individuals at once in this type of action, since
there will be different facts, different defences and different damages (if liability
is proven) in each situation. And the damages would max out at $5,000 for each defendant for non-commercial activity.

It is
sufficient if they show a bona fide
claim, i.e. that they really do
intend to bring an action for infringement of copyright based upon the
information they obtain, and that there is no other improper purpose
for seeking the identity of these persons. (emphasis added).

This
presumably does not mean simply getting names and addresses and using the insincere
threat of an action as a faux Sword
of Damocles to extract substantial settlements en masse.

In
this or any other similar situation to that of the BMG case, the party seeking disclosure
must show that it meets the “bona fide” test and that it has sufficiently
reliable non-hearsay evidence to justify the provision of thousands of names
and addresses of persons whose privacy will be sacrificed and the consequences
of wrongful identification can be enormous.

Is
the material adequate in this case? I make no comment on that issue. That’s for
the Court to decide. CIPPIC has indicated its position on this. But CIPPIC can
at most be an intervener, and even if allowed to intervene, may be permitted only
a limited role with no right to cross-examine. Anyway, CIPPC cannot play this
role in every case. That’s not CIPPIC's
job. It’s an ISPs job to under the PIPEDA
privacy legislation to safeguard its customers' personal information. And ISPs get well paid to do so.

To
sum up, if the material does not provide adequate, non-hearsay evidence to show
the reliability of the investigation and if there is not a bona fide intention of pursuing litigation, then the names and
addresses should not be provided.

If
Teksavvy could successfully oppose this motion and does not do so, its
customers are going to have lots of questions. This could also send a signal that
if an ISP as savvy as Teksavvy won’t ever oppose these types of disclosure
motions in order to stand up for its customers rights under PIPEDA, then other
ISPs also needn’t do so. And then, it could be open season for mass litigation and
“troll” activity in Canada.